Citation Nr: 1333249	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  13-03 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss and tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1962 to September 1966, and reportedly again from October 1972 to January 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was filed in March 2011, a statement of the case was issued in December 2012, and a substantive appeal was received in January 2013.
 
The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The RO denied service connection for bilateral hearing loss and tinnitus in April 2007, and notified the Veteran of its decision at that time.  The Veteran did not appeal, nor was new and material evidence received within one year of notification of the determination.

2.  Since the final April 2007 decision, certain evidence relating to unestablished facts necessary to substantiate the claims which is neither cumulative nor redundant of evidence previously considered has been received to reopen the claim for service connection for bilateral hearing loss and tinnitus.
 

CONCLUSIONS OF LAW

1.  The April 2007 RO decision denying service connection for bilateral hearing loss and tinnitus is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).

2.  The criteria to reopen the claims for service connection for bilateral hearing loss and tinnitus based on new and material evidence are met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The RO denied service connection for bilateral hearing loss and tinnitus in April 2007, and the Veteran was notified of this decision and of his appellate rights by a letter dated that month.  He did not appeal.  Additional evidence was not received within one year of notification of the determination.  Thus, the April 2007 rating decision became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  The RO's denial of the claims was on the basis that there was no evidence showing that bilateral hearing loss or tinnitus was causally related to active duty service.  

Claims are to be reopened when new and material evidence is submitted.  38 U.S.C.A. § 5108 (West 2002).  New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.   

The Court has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The Board is not bound by an RO determination that new and material evidence has not been received and makes an independent determination in this regard.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Here, new and material evidence has been received.  The Veteran was afforded a new VA audiological examination in November 2012, which provides a much more detailed nexus opinion and medical background for the Veteran's hearing loss and tinnitus, including additional lay statements claiming the Veteran first noticed his tinnitus and hearing loss in service, though they became gradually worse.  Moreover, treatment records from Mount Vernon, Missouri VA Medical Center (VAMC) were received with test results that further discuss the nature and etiology of the Veteran's hearing loss.

Therefore, applying the principles under Shade and Justus, the Board finds that such evidence directly relates to whether a causal relationship between his current disabilities and active service exists, and therefore new and material evidence that is neither cumulative nor redundant, and relates to an unestablished fact necessary to substantiate the Veteran's claim, has been submitted, and the claim should be reopened on that basis.   

ORDER

New and material evidence has been received to reopen the claims of service connection for bilateral hearing loss and tinnitus.  To this extent, the appeal is granted, subject to the directives set forth in the following remand section of this decision.


REMAND

The claims file includes a report of VA examination in November 2012.  The Veteran's representative directs the Board's attention to a comment by the examiner to the effect that referral to an otologist was recommended to further address the etiology of the Veteran's hearing loss and tinnitus.  The representative has requested that the case be remanded for such a specialist's examination.  Under these circumstances, the Board believes that VA's duty to assist the Veteran does require further development.  It may be that action was taken to have an otologist examine the Veteran, but no such report is of record. 



Accordingly, the case is REMANDED for the following actions:

1. The RO should also obtain the results of any examinations performed by a VA otologist in connection with his November 2012 VA audiological examination at the Fayetteville, Arkansas VAMC.  

2. If no such examination by an otologist was in fact conducted in connection with the November 2012 examination, then the Veteran should be scheduled for a VA examination with an otologist to determine the nature, extent and etiology of the Veteran's mixed bilateral hearing loss and tinnitus.  The claims file should be made available to the examiner for review in connection with the examination. 

a) The examiner should clearly discuss the nature and etiology of the Veteran's "mixed hearing loss."  In doing so, the examiner should determine whether it is at least as likely as not (50% or higher degree of probability) that any current mixed hearing loss is causally related to in-service noise exposure.

b) The examiner should clearly discuss the nature and etiology of the Veteran's tinnitus.  In doing so, the examiner should determine whether (1) it is at least as likely as not (50% or higher degree of probability) that the Veteran's tinnitus is a symptom associated with his mixed hearing loss, and (2) it is at least as likely as not (50% or higher degree of probability) that the Veteran's tinnitus is causally related to in-service noise exposure.

	The examiner should offer detailed reasons for all opinions

3. In the event the Veteran fails to report for the examination, the RO should forward the claims file to an otologist for review and responses to the questions posed in the preceding paragraph number 2.

4. After completion of the above, the RO should then re-adjudicate the claims.  The RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs